US Inaction: Aiding and Abetting Nazis After the Fact

JURIST Guest Columnist Jordan Paust of the University of Houston says recent evidence shows that the US has enabled certain Nazi war criminals to avoid prosecution, but that it is incumbent upon the government to end such impunity by actively prosecuting and/or extraditing suspects to stand trial...

In the past, the United States has rightly decried the intentional provision of safe havens for international criminals and has even claimed - improperly under international law - that it had a right to use armed force against the Taliban government in Afghanistan for its provision of safe haven to bin Laden while otherwise rightly engaging in self-defense against (non-state) armed attacks by al Qaeda on 9/11, thus starting the longest war in U.S. history. Now, with the release of a redacted December 2006 DOJ report that had been allegedly six years in the making, we more clearly understand that for decades the United States has been in "collaboration" with and has provided "a safe haven for [certain Nazi] persecutors" or international criminals who had participated in what were among the most evil crimes against humanity and war crimes known to humankind. While prosecuting many of the perpetrators and aiders and abettors of the Holocaust in tribunals abroad, the U.S. Executive secretly engaged in a serious and unforgivable violation of its constitutionally-based duty under international law to either extradite or initiate prosecution of Nazis who were known to have committed or who were reasonably accused of having committed clearly reprehensible crimes against humanity and war crimes. That duty under customary international law, captured in the Latin phrase aut dedere aut judicare, still pertains and there is universal jurisdiction over such crimes committed in violation of customary international law.

Planned impunity for Nazi accused began soon after Word War II, and the United States was not alone in instigating a secret cover-up and immunity for perpetrators of and contributors to the Holocaust. A seventeen-nation United Nations War Crimes Commission (UNWCC) compiled secret files on alleged international criminals from the Nazi regime, including Kurt Waldheim who would later become the U.N. Secretary-General. By 1986, Waldheim's file became publicly known. The CIA acknowledged soon thereafter that it had knowledge of an Office of Strategic Services (OSS) report on Waldheim, who had turned himself in to U.S. forces in Yugoslavia. Also released by the UNWCC were secret files on Adolf Eichmann, Joseph Mengele, and Klaus Barbie, each of whom had been among the most infamous perpetrators of international crimes. By 1987, France, Poland, and India, who had been members of the UNWCC, were still refusing to agree to public disclosure of the contents of the U.N. war crime files.

By the late 1970s, the U.S. Executive had made some effort to denaturalize and deport (but not to extradite for prosecution as required by international law) certain alleged Nazi war criminals. A few, like John Demjanjuk, were extradited. None were to be prosecuted in the courts of the United States and it is now evident that a secret and illegal marriage had occurred between the Office of Strategic Services (OSS; now the Central Intelligence Agency or CIA) and the Department of Justice (DOJ) to cover up a program of impunity for certain Nazi accused. This was illegal because under the United States Constitution all members of the Executive branch are bound by the law - including international law - and the Attorney General in particular has an independent constitutionally-based duty faithfully to execute the laws. The redacted classified report of an outcome of that marriage has just been released, and we learn that there had been a refusal to release the report during by Bush Administration at least since 2006. The marriage, we must never forget, culminated in the serial criminality engaged in by highest level members of the Bush Administration during George Bush's and Dick Cheney's admitted "program" of secret detention (a crime against humanity and war crime in the context of war) and "tough" interrogation which clearly involved criminal acts of torture and cruel and inhumane treatment of human beings. Still today, the Executive refuses to initiate prosecution of all persons who are reasonably accused of having committed crimes against humanity and war crimes, although it is the continual duty of the United States to either initiate prosecution or extradite.

As some of my present and former students know, I used to send letters to the U.S. Attorney General asking why there had been a refusal to comply with our international legal obligations in connection with Nazi accused. Usually, I would not receive a reply, although sometimes I would receive a thank-you-for-your-letter response and nothing else would occur. On May 2nd, 2001, I wrote to then Attorney General John Ashcroft "to point out that the United States has the capability of prosecuting persons for alleged war crimes committed abroad, whether the accused are foreign or U.S. nationals," and I provided an insert addressing such a competence under two forms of U.S. legislation that are noted below. My letter also noted that the "propriety of use of such legislation" had been explained in our casebook, Paust, Bassiouni, et al. International Criminal Law 243-44, 253-67 (2 ed. 2000). The letter ended with a recognition that, "[o]f course, the United States has an obligation to either initiate prosecution of or to extradite all persons reasonably accused of war crimes in violation of customary international law."

This time, I received a two-page reply. It came from the Chief of DOJ's Terrorism and Violent Crime Section and was dated August 10, 2010, just one month before 9/11. Within the letter was a statement that "[t]he Department of Justice does not view the 1996 War Crimes Act, 18 U.S.C. § 2441, cited in your memorandum, as applicable to offenses committed overseas by foreign nationals against non-U.S. nationals.... Further, ... the Department has concluded that ex post facto principles preclude the application of the Section to offenses that occurred before the October 11, 1996, date of its enactment."

Nonetheless, it is widely known that a U.S. federal statute can incorporate international criminal law by reference or set forth elements of international crimes and operate retrospectively without violating ex post facto principles as long as what is covered in the new legislation was a crime under international law at the time of the alleged infraction. An 1866 Digest of Opinions of the Judge Advocate General of the Army had recognized that retroactive application of the 1863 Lieber Code, which had codified customary international laws of war, was appropriate and allowed prosecution of war crimes committed during the Civil War even though there was no relevant federal statute defining such crimes or incorporating them by reference. Widely known also was the fact that although Israel, its courts, and its legislation did not exist during the Holocaust, it could lawfully prosecute someone like Eichmann for prior conduct in violation of international law. Moreover, the Charters of the International Military Tribunals at Nuremberg and for the Far East had not existed prior to criminal conduct addressed by the tribunals, nor had Control Council Law No. 10 existed prior to the international criminal activity addressed in numerous military commissions that had prosecuted tens of thousands of accused within Europe. There was, admittedly, no ex post facto problem encountered with respect to the creation of new charters or enactments and new tribunals as long as what was covered had been crimes under international law.

In fact, the United States had prosecuted war crimes, however sparingly, from the founding until 1916 without any federal legislation that had incorporated the laws of war. During 1916, new federal legislation was adopted that incorporated all of the customary laws of war by reference as offenses against the laws of the United States and that had also allowed jurisdiction in courts-martial and other military tribunals. This fact was affirmed by the United States Supreme Court in Ex parte Quirin (1942) and in other U.S. cases. Clearly, under 18 U.S.C. § 3231, federal district courts have jurisdiction over all offenses against the laws of the United States and Nazi accused could have been prosecuted in federal district courts by use of the 1916 legislation and § 3231. Relevant parts of the 1916 legislation have been duplicated since the 1950s in 10 U.S.C. § 818. Again, as recognized by the Supreme Court in Quirin and in other U.S. courts, that legislation "incorporated by reference... all offenses which are defined as such by the law of war" as offenses against the laws of the United States, and 18 U.S.C. § 3231 necessarily provides concurrent jurisdiction in the federal district courts that can be utilized if the U.S. Attorney General ever wants to comply with his or her constitutionally-based duty to faithfully execute the laws.

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer, and author of Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror (Cambridge University Press 2007), available here. While he was on active duty, his article "After My Lai: The Case for War Crime Jurisdiction Over Civilians in Federal District Courts" was published in the Texas Law Review.

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